Letter: English judge required for Rangers malicious prosecution inquiry
Douglas Cusine is right in pointing out that there is no need to wait for the end of civil litigation in the so-called “Rangers malicious prosecution case” before setting up an inquiry into what caused the Crown in Scotland to prosecute maliciously for the first time in history. I practised law for many years in the area of prejudice to legal proceedings. It is impossible that any civil cases be adversely affected by such an inquiry. The nonsense about one of the wronged administrators bringing some sort of criminal proceedings against the Crown can safely be ignored.
In my experience when this invalid excuse for delay is trotted out it’s because delay is seen as helpful for those in positions of responsibility. Presumably this matter has gone into the “too difficult” tray.
Like Douglas Cusine, I noted with interest the debate in the Scottish Parliament on the question of who might be appointed to carry out this inquiry. The Lord Advocate quite sensibly stated that it might well be necessary to appoint a judge from outside Scotland. Horrified MSPs then amended his motion so as to make it possible to appoint a Scottish judge. Now the settled law of Scotland is that the perception of bias in judicial or quasi-judicial proceedings is every bit as bad as the reality of bias. So having a Scottish judge carry out an inquiry into the alleged failings of a fellow Scottish judge (Lord Mulholland) is simply a non starter. This would be like going back to the bad old days of the police investigating complaints against police officers. It just isn’t on.
This must be a proper independent high powered inquiry. Not only does it involve the loss of huge sums of public money, it also goes to the heart of the independence of the prosecution system in Scotland. That is critical for the health and stability of a democratic system.
The truth is that the English legal system and the quality of their judges is admired throughout the democratic world. Over 40 per cent of litigation in England’s courts involves two foreign parties simply because they are anxious to have their disputes resolved by a trusted, expert and incorruptible body. They are also rather good and getting on with the job in hand in most situations. I can’t believe the Edinburgh Tram Inquiry, for example, would have been allowed to slowly meander its quite pointless and expensive way for quite so long south of the border. None of that indicates I don’t admire and respect our Scottish judges also. I do, but they can’t be involved here.
Douglas Cusine wonders why the justice secretary hasn’t done something to progress this inquiry process. Being perhaps a little more blunt than his former Aberdeen lordship can I suggest the explanation is that he doesn’t have a clue what to do.
As any management expert will tell you, it a characteristic of mediocre and unsure people to appoint those who will not challenge or criticise them. It is vital that for once those holding the power to set up this inquiry put self-interest aside and appoint a proper person to the role. What’s at stake here is a lot bigger than the narrow party political interest they wrongly hold so dear.
former honorary professor of law
University of Glasgow